On TAP: Kuttner + Meyerson

How Democrats Should Fight the Battle for the Court. Mitch McConnell has said he’ll bring President Trump’s nominee to succeed Anthony Kennedy on the Supreme Court to the Senate floor before the midterm elections. There’s really nothing Democrats can do to prevent that, and they don’t have the votes to block confirmation. On a straight party-line vote, assuming John McCain is absent, Trump’s nominee would win confirmation by a 50-to-49 tally. Not exactly a resounding vote of confidence, but enough to enable the Court to plunge the nation into a morass of plutocratic rule and evangelical bigotry for decades to come.

So, is there any chance a stray Republican might cross over and vote “No”? If, as is likely, the nominee looks willing to join the four current Court right-wingers in repealing Roe or Obergefell, then perhaps Maine’s Susan Collins or Alaska’s Lisa Murkowski could be persuaded to vote against him or her. Which means that while Democrats highlight the threat to choice and gay marriage in a nationwide campaign—which could also benefit Democrats in the November election, most particularly in those affluent suburban districts that could swing Democratic—they should raise the issue to stratospheric heights in Maine and Alaska and any other state where a wavering Republican solon is to be found.

Assume, though, that Trump’s pick is confirmed, and we are thereby compelled to settle into decades of legal diktats rooted in the Benedictine religious biases and the Spencerian social Darwinism of the Court’s right-wingers. How should the Democrats respond to that?

First, if they retake the Senate this November, they should refuse to confirm any Trump judicial nominations. And if a few Democrats break ranks on this, the Senate leadership should do what Mitch McConnell did when President Obama nominated Merrick Garland for the Court: Refuse to hold hearings or to bring the nomination to a vote on the Senate floor. We can term this strategy the McConnell precedent.

Second, assuming the right-wing Gang of Five is firmly ensconced on the Court in 2020, and none has suddenly taken leave to meet his Maker, Democratic candidates for president should embrace what we can term the FDR precedent: Call for legislation to expand the number of justices from seven to nine. President Roosevelt advanced this strategy early in his second term, after the right-wing majority then on the Court had shot down most of the core elements of the early New Deal. Roosevelt’s fear was that they would continue on that course and strike down Social Security and the National Labor Relations Act, both newly enacted.

Roosevelt’s proposal drew a furious backlash, not only from Republicans but also from the Southern Dixiecrats in Congress, and he was compelled to withdraw it. But it had a real effect on the Court, which subsequently and surprisingly upheld the NLRA, Social Security, and other key New Deal legislation.

One of the problems with FDR’s proposal was that he didn’t introduce it—indeed, he may not have conceived it yet—when he ran for re-election one year earlier. If the Democratic presidential candidates in 2020 make it part of their platform, however, and should one of them oust Trump that year, the new president could claim that he or she had a mandate to expand the Court.

This is admittedly a controversial course of action—but even as it will mobilize Trump supporters, particularly evangelicals to turn out to vote in 2020 (which most of them will do, in any case), it could also mobilize the low-propensity voters in the Democratic base if the Democratic campaign makes clear just how much the Court’s troglodytes have it in for them. Besides, it’s not clear what else the Democrats could do to short-circuit decades of the Court diminishing freedoms and afflicting lives.

The Court: First Muslims, Now Public Employees. The Supreme Court has ruled, 5-4, in the Janus case that public-sector unions may not collect “fair-share” fees from workers who benefit from union contracts but choose not to join the union as dues-paying members.

This in effect extends “right to work” principles to the entire public sector, the largest source of union growth in recent years, for schoolteachers, nurses, cops, firefighters, and myriad other public workers, some 17 million in all.

The decision, in the short run, will weaken unions such as SEIU, AFSCME, and the teachers’ unions. However, as shown by recent successful actions by teachers in several red states, public-worker political consciousness is on the rise, and so is popular support for them.

Public appreciation of the value of collective bargaining is growing generally. More than three in five Americans have a favorable view of unions, with two-thirds of young people supporting unions.

After Janus, public-sector union members will have to redouble efforts to persuade their free-riding brothers and sisters of the value of strong unions. They will be helped in this enterprise by the worker-bashing of right-wing state governments, the Trump administration, and now the Supreme Court.

It would be an exaggeration to call Janus a blessing in disguise—it is one more outrage by a Supreme Court taking advantage of Neil Gorsuch’s stolen seat. But the organizing that occurs in the wake of Januswill bring out the best in trade unionism.

Barbarians in Robes: The Committee to Defend Rich, Bigoted Old White Men (Preferably Patriarchal in the Pope Benedict Mode, and Zealously Republican)—otherwise known as the five Republican justices on the Supreme Court—is on a roll. The Committee is closing out this session with a bang, delivering a satchel of decisions that harks back in its economics to the Lochner court of 1905 (which struck down New York’s law that said bakers couldn’t be made to work more than ten hours a day or 60 hours a week, because it violated the free speech of employers) and in its racial attitudes to the Dred Scott court of 1857 (slightly updated for appearances' sake).

This spring, the Committee ruled that employers could force their workers to resolve disputes with their employer by going through an employer-dominated arbitration process, rather than go to court via class-action suits. The decision flatly ignored the National Labor Relations Act (NLRA), which gives all employees, union or not, the right to seek redress for grievances, doing so by a tortured reading of a 1920s arbitration decision that preceded the NLRA. And later this week, most likely Wednesday, the Committee is likely to rule in the Janus case that public-sector unions cannot collect fees from people it is legally required to represent in matters of bargaining and grievances, a decision that would deal a major blow to the largest unions in the land, and would diminish their capacity to help turn out minority voters and everything else that Republicans loathe.

Moving from the Committee’s class bias to its racial, religious, and gender biases, today’s decision upholding the Muslim Travel Ban is in the best tradition of the Oriental Exclusion Act and the immigration restrictions that from 1924 through 1965 effectively limited immigration to people coming from Northwestern Europe. How it squares with the First Amendment’s prohibition on laws dealing with religious establishments—well, I can’t see how it does square with that. No matter, apparently, to the Committee. In another of today’s decisions, this one to gladden the patriarchal, misogynistic hearts of our own evangelicals, the Committee ruled that pregnancy crisis centers need not be required to inform the women who come to them for guidance that legal abortion is one of their options, and how they might pursue it.

Wait—there’s more! On Monday, the Committee struck down a lower court’s order that overturned race-based gerrymandering in Texas, in a decision that cautioned potential litigants that they needed to assume the good faith of legislators in drawing district lines. In a sense, this decision was a two-fer, not only discouraging future challenges to race-based gerrymandering but also advantaging Republicans in future election contests. Fittingly, the decision came on the fifth anniversary of the Shelby decision, in which the Committee (then with Antonin Scalia rather than Neil Gorsuch) effectively struck down the government’s ability to enforce the Voting Rights Act in states where anyone with eyes could see how white racism still shaped the political and societal order.

Can Trump Pull This Off? Trump’s base loves his immigration stance of zero tolerance. His approval ratings are 90 percent among Republicans.

He keeps repeating that the separation of families at the border is the fault of Democrats, and that he saved the day with his executive order requiring detained families to be kept together. The situation is so muddled—and the courts are likely to make it more inconclusive—that Trump just might get away with it, right?

Wrong. The 2018 midterm elections are going to be based on two factors—turnout, and the behavior of swing districts. Turnout among Trump’s base was already peaking in 2016, while turnout among core Democratic constituencies was depressed.

We can expect Democratic turnout among Latinos to go through the roof in 2018, with turnout among blacks, women, and young people also rising dramatically. Meanwhile, in well-educated suburban swing districts, Trump’s behavior is disgusting Republican voters, especially women.

Yes, the generic Republican vote for Congress has risen slightly, but it tends to bounce around. In the districts that matter, Democrats are still headed for a big win in November.

Trump’s Full-Blown Trade War. It’s one thing for Trump to demonize Mexicans. Disgracefully, that’s popular with his base, and it also confuses some of the progressive community, because NAFTA really does need to be renegotiated.

It’s quite something else to invite retaliation from China with a tit-for-tat tariff war that could be devastating for American farm exports (in mostly Republican states). The EU, likewise, has now decided to strike back with retaliatory tariffs, which will harm American exporters and of course workers, as well as splitting the Republican coalition.

The strong rate of GDP growth and low unemployment rate have done nothing for workers’ wages, which have actually declined slightly in the past 12 months. But at least the robust economy has given Trump some bragging rights. This success will be at serious risk in a full-blown trade war.

To be sure, the current trading system does not serve American workers. But neither do Trump’s bizarre, tweet-driven policy thunderbolts, raising tariffs and insulting allies helter-skelter.

In that respect, Trump has done a triple public service, however inadvertently. He has demonstrated that we need a different trade strategy for America—and that he is utterly incompetent to bring one about. And he has managed to divide his hard-core base from the Republican corporate and agricultural interests.

Will Another D.C. vs. Disdain Democratic Norms? When is a free and open election invalid? Apparently, when elected officials don’t like the result.

That’s the philosophy of Maine’s Trumpier-than-Trump Republican Governor Paul LePage, who has refused to expand Medicaid in his state despite the legally binding vote of Maine’s citizens, who passed a Medicaid-expansion initiative. LePage has been ordered by the courts to implement the expansion, but still refuses. Mercifully, LePage is termed out of office at year’s end.

Something like that could never happen in the nation’s most liberal jurisdiction, right? Well, maybe it could.

On Tuesday, voters in Washington, D.C., passed an initiative that would raise the minimum wage of tipped workers—currently, only $3.30—to the same level as the city’s non-tipped workers: $15, to be phased in over the next eight years. Unlike the Maine initiative, this one (Initiative 77 by name) was only advisory, but avowed liberals on the D.C. Council and the avowed liberal who’s the mayor wouldn’t thwart the decision of the city’ voters—or would they?

In fact, in the run-up to the election, both Mayor Muriel Bowser and ten of the 13 Council members came out against the initiative. I realize the dust is still settling from Tuesday’s vote, but so far, none of those ten has said that they’ll be bound by the voters’ decision or that they’ve reversed their position. One has even said that due to the relatively low voter turnout (17 percent of registered voters), the Council should feel free to ignorethe voters’ preferences.

The low turnout was chiefly the result of the fact that in the only race that people really focus on and that the media cover—that for mayor—Mayor Bowser drew no serous opponents whatever. Of course, by the logic that low turnouts invalidate results, Bowser’s re-election on Tuesday should also be tossed into the ashcan.

In opposing the initiative, council members aligned themselves with the local restaurant owners’ association and the National Restaurant Association, which in state after state is customarily the only organization that campaigns against minimum wage hikes not just for restaurant employees but for anyone. As the Prospect’sManuel Madrid has noted, the restaurants hired some dillies of right-wing consultants to run the No campaign.

The campaign the consultants ran was couched in the language of saving servers’ tips. Many servers in thriving restaurants opposed the measure, fearing that their tips would vanish in the wake of its passage. That hasn’t been the case in California, which enacted just such a measure—raising tipped workers’ hourly minimum to $15 over a long period of time—a number of years ago. In California, the amount servers make in tips remained essentially the same.

Nor were the tipped workers opposed to the measure a representative sample of the District’s tipped employees. Their ranks didn’t include the hair and nail salon workers, the valet parkers, the folks who deliver meals to your door, and the servers in less affluent neighborhoods. The net income of these workers—the $3.30 an hour plus generally modest tips tips—don’t add up to all that much, which is likely why they were strikingly absent from the servers’ rallies against the initiative.

But this merely addresses the manifest merits of the initiative. What’s now before the council and the mayor is a more fundamental question: Do they accede to the will of the electorate, or do they accept the premise that low turnouts negate election results—notwithstanding the fact that they themselves have often won and re-won offices in low-turnout elections. If that’s their argument for reversing the voters’ decision, the only way they could do that in good faith would be to simultaneously resign.

Their real reason for opposing the measure, of course, is that politicians frequent restaurants and hold events there, and restaurant owners routinely make contributions to their local elected officials. In the cosmic chain of campaign-finance abuses, the restaurant-owner-council-member link isn’t really one that should excite reformers all that much. And there’s no question that some restaurants that operate on the margins may have to make some changes if the ordinance is adopted—though they have fully eight years to adjust.

But there are thousands of servers in restaurants that aren’t overflowing with affluent diners, or who work trimming hair and nails and delivering pizzas, who are the mayor and council’s constituents, too, even if they don’t make campaign contributions. For all their hard work, they are struggling to survive in this high-cost city. For reasons both moral and economic, the voters just decided to give them a raise. There’s already one government based in D.C. that pays scant attention to voters’ preferences and democratic norms, but that’s what we’ve come to expect from Trump-era Republicans. That’s no reason why the District’s elected (and Democratic) government should join them in disdaining democracy.

Trump’s Tax Fraud. For months, we’ve been warning that you would pay the cost of Trump’s $1.9 trillion tax cuts. Well, here it is, the six-month anniversary of passage of the Tax Act, and the Republicans on the House Budget Committee just unveiled their plan: finance their increased deficit and balance the budget by cutting Social Security, Medicare, and Medicaid!

Here’s the good news. The Tax Act, which was going to be a big political winner for Republicans, is turning out to be a huge loser for them. Republican candidates are running from it. The more that voters learn about it, the less they like it.

Democrats, some of whom defected to support the Reagan and Bush tax cuts, were united in opposition to this one, and are united in their efforts to turn it into a political winner—and a teachable moment about the fraud of supply-side economics, besides.

For the first time in our nearly 30 years of publication, the Prospecthas decided to devote and entire issue to a single topic—the Tax Act, as emblem and substance of all that is corrupt, opportunistic, and fraudulent of this period of Republican rule.

The print issue will be out next week. In the meantime, you can view some of the key pieces at Prospect.org, including the lead pieces by public opinion analysts Stan Greenberg and Guy Molyneux on how to make the Tax Act a winning issue for progressives.

The Three Kinds of Republican Officials. As Republican senators’, representatives’, and executive branch officials’ responses (ranging from deficient to depraved) to the separation of families at our southern border makes clear, there are three kinds of Republicans currently in office: the Failures, the Cowards, and the Bigots. There are overlaps among these categories, of course, but they’re typologically useful nonetheless.

The Failures are the self-proclaimed moderates who occasionally try to do the right thing but back off if it threatens Republican unity. The prime examples here are the Republicans who signed or thought about signing the discharge petition that would have forced the Republican House leadership to hold a vote on legalizing the Dreamers. This had been the marquee cause of a number of these moderates from swing congressional districts, including Florida’s Carlos Curbelo and California’s Jeff Denham, David Valadao, and Steve Knight. They vowed they had the 25 GOP votes that, combined with the votes of all 193 House Democrats, would come to 218—the majority that would have forced Paul Ryan to hold that vote. But they couldn’t get the total number of Republican signatories past 23—two votes short of 218. If Curbelo, Denham, and Co. were truly serious about legalizing the Dreamers, they’d recognize that that won’t happen until the Democrats control Congress, and stand aside to allow their Democratic opponents to win their swing districts this November—since, by the metrics they set for themselves, they’ve failed abjectly and completely.

The Cowards also don’t want to upset Republican unity or offend the GOP base, but though they object to a particular policy, they even don’t go as far as the Failures in proposing a plausible remedy. Exhibit A in this category is Maine Senator Susan Collins, who this weekend described the policy of family separation as being “traumatizing to the children who are innocent victims, and … contrary to our values in this country.” But Collins went on to say she opposed her Democratic colleague Dianne Feinstein’s bill to ban the policy, calling it “not the answer” because it was too broad. Susan Collins and her ilk don’t dare to eat a peach, lest it offend her pro-Trump voters.

That leaves the Bigots, who are either fine with the policy or call it distasteful but blame it on the Democrats or the cycles of the moon. The higher you go in the administration, the more bigots keep popping up, until you reach the president himself, who has referred to immigrants as “animals.” This is the language of bigots—indeed, it’s a justification for and rhetorical prelude to violence against those the bigot deems to be enemies. That doesn’t make the bigots animals, however. This kind of fear and loathing is peculiar to humans and, apparently, to a growing share of Republican officials. And Republicans generally: In a CNN Poll released Monday afternoon, Americans disapproved of the policy of family separation by a 67 percent to 28 percent margin—but Republicans approvedof it by a 58 percent to 34 percent margin. In fairness, that may be what comes of watching Fox News and believing its Goebbelsesque lies.

Which brings me to my own immigration policy. Why don’t we deport Rupert Murdoch? Is there any other immigrant who’s done more to destroy the fabric of American society and life than Old Rupe? And separate him from his kids: They can’t do a worse job of directing Fox News than the old man, and might just do better.

Feeling Optimistic … or Pessimistic?Let’s try pessimistic first. Mueller is dragging out his investigation while Trump’s allies tighten the noose around him. And his report will only be a report. The impeachment process is hopelessly political, in any case.

Meanwhile, Trump succeeded in making his Korea talks look like a kind of breakthrough. Even his tariffs are rallying his base. His approval ratings are up slightly. And his immigration policy may be deeply inhumane, but it plays well in parts of the country that feel inundated with immigrants. Here’s the definitive piecefor pessimists, courtesy of our friends at Vox.

Feeling sick? Here’s the optimistic antidote. Of course the impeachment process is ultimately political—that’s how the Founders intended it. Quite apart from Mueller, the are plenty of impeachable offenses already on the public record: obstructing justice by firing Comey and using foreign policy to enrich himself, to name just two.

Dems are on the march to take back Congress. And then the impeachment process becomes a dynamic thing. As the public focuses more and more on it, Republican senators may well decide it’s time to dump Trump well before the 2020 election.

And schisms in the Republican Party are widening almost daily, over trade, immigration, and Trump’s corrupt China policy.

Inscrutable China Policy. Trump’s decision to move ahead with tariffs on $50 billion worth of Chinese exports prompted an immediate retaliation by Beijing. It’s a classic case of Trump using the wrong strategy to pursue a long-overdue revision of U.S. coddling of Beijing’s predatory state capitalism.

As an unnamed senior administration official, almost surely chief trade negotiator Robert Lighthizer or White House trade strategist Peter Navarro, toldThe New York Times:

China has a history of using state subsidies to build up excess capacity in a variety of industries that then pushes down prices and drives free-market competitors in the United States out of business. The United States cannot afford to allow China to carry out the same practices in emerging industries, including robotics, new energy vehicles and information technology.

Exactly right. But the right way to compel China to alter its model or to face economic sanctions is to work with the world’s other major trading bloc, the European Union, in a common China strategy. Trump, however, keeps going out of his way to insult and alienate the EU. Hello?

The hardening of the U.S. line makes Trump’s decision to allow the Chinese tech company ZTE back into U.S. markets all the more bizarre, and makes it even more likely that Trump’s real motive in this one-off favor to Chinese dictator Xi Jinping was to thank Xi for investing in a Trump enterprise in Indonesia and granting lucrative favors to Trump’s daughter, Ivanka.

Trump, with his tiny attention span and his penchant for lashing out, can’t manage to maintain a consistent policy from one day to the next. We do need a revisionist China strategy, but Trump’s version is a perfect marriage of the inept and the corrupt.